The passage through Parliament of the Divorce, Dissolution and Separation Bill this summer has identified how a simple matter of labelling the parties may send out a much healthier message to children.
During the Public Bill Committee stage in the House of Commons on 2nd July 2019 David Hodson OBE (Law Society Family Law Committee) said:
“One of the things the legislation has to bring through is that we have to review how we call people in this process. It is the soft elements around the legislation that are as important as the harder elements.”
Thousands of family law professionals who belong to Resolution subscribe to a Code of Practice that promotes a constructive approach to family issues. As divorce law currently stands, the adversarial positioning of the couple as “petitioner” and “respondent” could be perceived as automatically putting the good intentions of family lawyers and other family law professional at odds with various pledges under the Code, including to:
“Listen to and treat everyone with respect and without judgment.”
Hodson further commented:
“Let us call it a divorce between two people, without having a litigious element in the heading.”
The importance of labelling may therefore be considered relevant to the focus of no fault divorce legislation, which has a core objective to promote the welfare of children. During the Committee Stage, Nigel Shepherd (immediate past Chair of Resolution) confirmed that a very considerable number of divorces involve children under the age of 16, that children are at the heart of this process, and the conflict is damaging to children.
These comments are borne out by the findings of Professor Liz Trinder’s Finding Fault Report (Nuffield Foundation) which indicated that the use of fault might trigger, or exacerbate, parental conflict, which has a negative impact on children. The national survey found that 62% of petitioner’s and 78% of respondents said fault had made the process bitterer. When interviewed, both petitioners and respondents gave examples of how the use of fault, mainly behaviour, had had a negative impact on contact arrangements, including fuelling litigation over children. Some described threats to show the petition to children
Resolution members and family lawyers have long known that traditional processes often fall short of achieving a healthy divorce. It explains why a significant number of family law professionals have trained in dispute resolution processes better suited to meet the need of couples facing relationship breakdown.
Dispute resolution processes dramatically steer away from the harder elements of existing legislation and traditional processes, which label parties as part of an adversarial process.
In the Collaborative law process, for example, the parties and their lawyers sign a Participation Agreement at the beginning, which includes a commitment to the following primary principle:
“They intend to resolve these issues by focusing on all their needs (their own and the needs of their children), rather than focusing upon just their own claims, needs and legal rights.”
However, continuing to base divorce on fault can fuel unnecessary distress in an already difficult situation for the separating couple. During the Committee Stage, Aidan Jones (Relate) described the benefits of removing fault from the divorce process for the couple who are trying to work through their relationship difficulties
“Blame is toxic and is never helpful. A great deal of the work we do in the counselling room is around helping people to understand this and to take responsibility for their own actions.”
The Bill currently under consideration does include measures to change references to “petitioner” in the process to “applicant”. However, references to a “respondent” will remain. This is not sufficient to mark the sea change of no fault divorce legislation, which is intended to transform divorce from an adversarial to a more consensual process.
Instead, the heading could be changed to “in the marriage of” and the parties simply referred to by their names, rather than on the basis of who notified the other of the divorce. This is also far less confusing later on because applicants and respondents can mean different things in different process. For example, someone could be the applicant in the divorce and the respondent in family remedy proceedings.
Meanwhile, using “wife” or “husband” also seems not to be appropriate as the process is designed to bring the relationship to an end.
Using the parties’ full names, by contrast, would help humanise the process. Many Agreement documents reached through Dispute Resolution processes use the parties’ full names in the title and commencement and execution clauses, and the forenames within the main body of the text. This would also make the documents work better and be easier to read, as it is plain English rather than legal language. It is a good opportunity to modernise the process thoroughly.
However, the legislation could go further still by making it possible to apply for divorce jointly – something that should be encouraged as a matter of good practice. We would expect that those who have been through counselling, mediation or collaborative law would want to apply for divorce jointly, as it gets away from having to attribute blame. By having this possibility, we would hope that this would become the normal way forward as part of obtaining a more healthy divorce. It also sends a better message to the children.
Reducing conflict in relationship breakdown is a laudable aim and generations of family lawyers have been campaigning for these changes for decades. Language acts as a framework for our thinking. Where that framework is geared towards conflict, there can be little surprise when our thoughts and actions follow suit.
Not only will a relabelling of the divorce process promote better outcomes for families, but also could lead to other welcome changes in other areas of family law practice. For example, the President of the Family Division’s practice guidance on the use of standard orders in financial remedy proceedings encourages Court Users to express the parties as Applicant and Respondent despite the fact that the bulk of Orders are made by consent. Would it not be better to express the parties by their names to reflect the accord between them rather than require standard reference to litigious phrasing?
Generally, the priority now must be to get the new legislation over the line through Parliament so that it does not get delayed or fail. These changes can be dealt with by modernising the terminology through a wholesale revision of the Family Proceedings Rules 2010. These are ripe for revision, given the progression of legislation towards modernising the practice of family law in any event and these changes could be achieved relatively easily by secondary legislation.
Resolving children and finance issues when couples are experiencing relationship breakdown can be complex and difficult when they are experiencing conflict, but no fault divorce will send out a much healthier message for children. A humane divorce that recognises the couple as two people rather than litigants is a subtle but important way of reducing conflict and ultimately achieving better outcomes for families.
Graeme Fraser is Head of Family and Partner at OGR Stock Denton